IN THE CASE OF:  	  

		BOARD DATE:  30 October 2014	  

		DOCKET NUMBER:  AR20140005334 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of her under other than honorable conditions discharge.

2.  The applicant states she went absent without leave (AWOL) after her mother was killed because her three younger brothers needed her.  She requests an upgrade to her discharge to enable her to receive care from the Department of Veterans Affairs (VA) for her multiple ailments.

3.  The applicant provides a self-authored statement and a DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 14 September 1981.  Her records show she completed basic combat and advanced individual training and was awarded military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade she attained while serving on active duty was private first class/E-3.

3.  She received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go to her prescribed place of duty on the following occasions:

* 18 November 1982
* 4 April 1983
* 20 September 1983
* 3 October 1983

4.  Charges were preferred against her, on 15 December 1983 for:

* being AWOL for the period 11 October 1983 through 14 November 1983
* wrongful appropriation of a privately owned vehicle on 
23 November 1983
* writing 19 dishonored checks from 10 September 1983 through 
14 October 1983.

5.  Additional charges were preferred against her, on 29 December 1983, for being AWOL for the period 21 December 1983 through 29 December 1983.

6.  On 30 December 1983, she consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and procedures and rights available to her.  Subsequent to receiving legal counsel, she voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In her request for discharge, she indicated she understood that by requesting discharge she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the VA, and she could be deprived of her rights and benefits as a veteran under both Federal and State laws.  She elected not to make a statement in her own behalf.

8.  On 26 January 1984, the separation authority approved her request for discharge and directed her reduction to private/E-1 and the issuance of an under other than honorable conditions discharge.

9.  On 10 February 1984, she was discharged accordingly.  Her DD Form 214 shows she completed 2 years, 3 months, and 15 days of total creditable active military service, with 41 days of lost time due to being AWOL.

10.  There is no indication she petitioned the Army Discharge Review Board for a review of her discharge within that board's 15-year statute of limitations.

11.  The applicant provided a self-authored statement in which she contends she went AWOL after her mother was killed in order to assist her 3 younger brothers.  She regrets that decision and requests an upgrade to her discharge in order to receive medical care for her multiple ailments.

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation from the Army with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her character of discharge ought to be changed was carefully considered; however, it was found to have insufficient evidence to support his request.

2.  Her record reflects she received NJP under the provisions of Article 15 of the UCMJ on 4 separate occasions and she was AWOL over 3 separate periods amounting to 41 days of time lost 

3.  Her record also shows she was charged with the commission of multiple offenses punishable under the UCMJ with a punitive discharge and she voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial, which may have resulted in a felony conviction.

4.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  Further, her discharge accurately reflects his overall record of service.

5.  She consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ.  Subsequent to receiving legal counsel, she voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

6.  Although she states her family issues caused her to go AWOL, there is no evidence in her military records and the applicant has not provided sufficient evidence supporting this contention.  She had an opportunity to make her current contentions known to her commanders, but she elected not to submit a statement on her own behalf.  Therefore, this argument is not sufficient to support her request for an upgrade of her discharge.

7.  Based on her record of indiscipline, her misconduct rendered her service unsatisfactory.  Therefore, she is not entitled to the relief requested.
 
8.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her character of service.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for veterans' benefits should be addressed to the entity granting the benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20140005334





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ABCMR Record of Proceedings (cont)                                         AR20140005334



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